U.S. Food and Drug Administration (FDA) Commissioner Scott Gottlieb has indicated that he will resign by the end of March 2019. Gottlieb reportedly said that he no longer wanted to commute between Washington, D.C., and Westport, Connecticut, where his family lives. Commentators have speculated that Gottlieb's departure may affect FDA initiatives, such as its planned review of the safety of cannabidiol as a food additive.
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The U.S. Department of Agriculture (USDA) has announced an online listening session to hear public input about "a new program to regulate hemp production." The agency's Agricultural Marketing Service (AMS) will host the webinar on March 13, 2019, with registration required by March 11 to speak during the session. "The Secretary of Agriculture and the respective USDA agencies, including AMS, are working to implement the provisions of the 2018 Farm Bill as expeditiously as possible to meet the needs of producers and other stakeholders," the announcement states. "To allow for public input and ensure transparency, it is important to hear from stakeholders regarding their priorities, concerns, and requests."
The U.S. Department of Agriculture (USDA) and Food and Drug Administration (FDA) have announced "a formal agreement to jointly oversee the production of human food products derived from the cells of livestock and poultry." The agreement "describes the oversight roles and responsibilities for both agencies and how the agencies will collaborate to regulate the development and entry of these products into commerce," according to a press release. "This shared regulatory approach will ensure that cell-cultured products derived from the cell lines of livestock and poultry are produced safely and are accurately labeled."
A Missouri state senator has introduced legislation that would clarify when slack fill is allowable in food containers. The bill would prohibit slack fill from being deemed as misleading for eight reasons, including (i) protection of the contents, (ii) reasonable industry standards, (iii) a specific function provided by the package, (iv) value added by the packaging, such as a reusable container, and (v) required label messaging.
The Center for Science in the Public Interest (CSPI) has filed a Freedom of Information Act (FOIA) request seeking to identify the poultry-production plants associated with an outbreak of Salmonella. CSPI requested that the U.S. Department of Agriculture (USDA) deliver information on the "name, address, establishment number, and date of positive sample(s)" for poultry products that "tested positive for the outbreak strain of Salmonella Infantis" in raw chicken and "Salmonella Reading" in raw turkey. "In addition to granting the current FOIA request, which may be done by delivering the data to CSPI directly or posting it on the USDA website, CSPI also requests that the USDA develop a practice for reporting this information publicly in all similar multi-source outbreaks moving forward," the request states.
Class action litigation, the legal landscape for cannabis and the evolving implementation of the Food Safety Modernization Act (FSMA) were trending topics at the 2019 Grocery Manufacturers Association (GMA) Legal Conference. Numerous panels at the conference focused on emerging issues affecting the industry and anticipated trends moving forward, including implications of whole genome sequencing; how courts view the confluence of First Amendment rights and mandated advertising content; and standards-of-identity issues related to non-dairy milks, non-animal meats and cell-grown meats. Shook Partners Katie Gates Calderon, Phil Goldberg and Jim Muehlberger presented with Courtney Ozer, Assistant General Counsel – Litigation for Unilever United States, and Suzanne Werner, Litigation Counsel – The Coca-Cola Company, on strategies for avoiding and defending against claims involving product testing. The panel discussed (i) assembling a crisis-management team, which should include key company stakeholders, inside counsel, public-relations and governmental-relations personnel; (ii) understanding the pending lawsuit, which involves robustly…
The federal government has filed a statement of interest in a lawsuit alleging that Lenny & Larry's Inc. misled consumers as to the amount of protein in its cookies. Cowen v. Lenny & Larry's Inc., No. 17-1530 (N.D. Ill., E. Div., filed February 15, 2019). The statement argues that the settlement is a marketing opportunity for Lenny & Larry's rather than a benefit for the consumer class. "The settlement before the Court has a purported $3.5 million value, but that amount disguises the limited benefits it actually offers to class members. In reality, the settlement's cash component will go almost entirely to class counsel, while the bulk of its non-monetary award will consist of free cookies the defendant plans to send to vendors across the country for distribution to whomever those vendors select," the statement asserts. "Indeed, it is difficult to imagine a less balanced settlement than one where most…
A consumer has filed a putative class action alleging that Cento Fine Foods Inc. misleadingly markets its tomatoes as "Certified San Marzano" without having the proper certification. Sibrian v. Cento Fine Foods Inc., No. 19-0974 (E.D.N.Y., filed February 19, 2019). San Marzano tomatoes are grown vertically with supports in San Marzano sul Sarno in Italy, the complaint asserts. Cento's San Marzano cans feature a logo for an Italian agency that "does not 'certify' that the Products are compliant with the San Marzano guidelines, and it is actually an entity which may have performed the [U.S. Department of Agriculture] Organic certification," the complaint argues. Cento's website also identifies a company that "verifies that the Products conform to the San Marzano official criteria," but the plaintiff alleges that the company "is believed to be the company which supplies defendant with San Marzano seeds and possibly certifies whether the Products are organic, as…
U.S. Food and Drug Administration (FDA) Commissioner Scott Gottlieb reportedly said in a February 27, 2019, hearing before the House Appropriations Committee that the agency will hold public hearings on cannabidiol (CBD) in April 2019. Gottlieb reportedly told the committee that FDA is assembling a working group of senior officials to create rules that would govern CBD in food and other uses. According to CNBC, "Gottlieb floated what a possible framework might look like. He suggested high concentrations might be regulated as a drug that has more stringent oversight while lower concentrations could be categorized as food products that come with an easier review process." Meanwhile, a New York City crackdown on CBD in food products has reportedly been postponed. Beginning in October 2019, CBS reports, violators selling CBD food may be subject to fines of $200 and risk lower public health letter grades.
Wendy's International Inc. has settled two class actions alleging injuries stemming from a 2016 payment-system breach. Jackson v. Wendy's Int'l Inc., No. 16-0210 (M.D. Fla., entered February 26, 2019); First Choice Fed. Credit Union v. Wendy's Co., No. 16-0506 (W.D. Penn., entered February 26, 2019). A Florida federal court approved a $3.4 million settlement between a consumer class and the company, including $1.1 million in attorney's fees. In Pennsylvania, a federal court granted preliminary approval to a settlement in a lawsuit brought by a class of financial institutions that reimbursed customers for fraudulent transactions. Wendy's will pay $50 million under the settlement agreement.
